132 N.Y.S. 850 | N.Y. App. Div. | 1911
Lead Opinion
In the summer of 1909 the defendant was engaged in the construction of a large reinforced concrete building on Hart street, in the city of Rochester. The work was carried on by separate gangs of men, each devoted to its specific kind of work. The plaintiff, a young man twenty-seven years of age, was employed with the concrete gang in wheeling concrete and finishing off the floors of that material. The first floor was sixteen feet from the ground, and at the time of the accident most of the false forms used in the process of construction had been removed. There were heavy planks between the girders, each over eighteen feet in length, eight inches wide and two inches thick, which were held in position by supporting shores or posts four inches square resting on the ground, as the concrete floor had not been laid. Concrete had been poured into troughs above these planks and when that had hardened the shores were knocked from under, the braces removed and the planks pried loose with pinch bars and taken down. A wrecking gang had charge generally of the removal of the false work and it was composed of men experienced in that kind of work. Much of the wrecking work had already been done by this gang, but the support was left in the center of each of the heavy planks in one part of the building.
On the morning of the accident, Culp, the foreman in general charge of the work on the building, told Chaney to remove these shores and braces and take down the planks, and Adams was directed to assist him. Neither of these men, as the foreman knew, had had any experience in this work, nor did Culp give them any instructions as to the manner of doing it. Culp directed them to take ladders and carry down these planks. A' little later in the forenoon he told the plaintiff to go over and help Chaney, and the latter directed him to knock out the shoring and carry it off. Chaney and Adams went up the ladders, holding up the end of the plank with bars, and the plaintiff knocked out the shoring and carried it and the braces away, and the other two men pried the planks loose and carried them down. Four planks had been removed in this manner. As they were standing on their respective ladders they were obliged to reach above their heads in order to pry loose and. let
Culp, the foreman, knew of the manner in which this work was carried on and did not attempt to change the method of its performance. He knew the plaintiff was removing the shores and braces, and knew of the inexperience of Chaney and Adams, and that the plaintiff was one of the concrete gang on this building and had had no experience whatever in the work which he directed him to perform until the day he v/as so frightfully injured by the taking down of this heavy plañir. The plaintiff was obeying the direction of Chaney to remove the shore and braces when the plank fell down and injured him. Ho evidence was offered on the part of the defendant, and the plaintiff made out a prima facie case, and the verdict was not against the weight of evidence.
In the first place, the defendant did not furnish a reasonably safe place in the circumstances which the evidence discloses. ■ We appreciate this rule is to he .applied in the light of the fact that this building was in process of construction, and that the business was, to some extent, hazardous, notwithstanding these facts, it was still incumbent upon the defendant to protect its men so far as it bias reasonably able to do so.
In the second place, the men employed to do this work were incompetent and inexperienced. The evidence shows that the men who usually did such work consisted of a wrecking gang and were men familiar with the business and the most feasible and safe way of performing it. Chaney and Adams received no instructions from the defendant. It is not a question of rules; it is a question of failure to warn or instruct the plaintiff, and also Chaney and Adams, as to the way in which this work should be performed, which constitutes the negligence of the defendant.
Third. The way in which the work was done warranted the jury in finding that the men were incompetent. Chaney was
It is not a question of which of two ways is preferable. The jury have found that the method which the defendant permitted to be followed was reckless and careless, and the evidence justified this conclusion.
Fourth. The jury had a right to find that the plaintiff was not guilty of contributory negligence. Three or four of the planks had been taken down before this, and in. each instance he had been directed to carry away the props and supports which he had knocked from under the planks. ■ He did this as soon as they fell down, and the foreman knew about that. This necessarily placed him somewhat under the plank," but considerable time elapsed before the plank came down, and he had plenty of opportunity to obey the direction which was given to him. At the time of the accident he was not directly under the plank which fell, and it dropped down suddenly and without any notice or warning to him and veered off to one side and fell upon him. We cannot say, therefore, as matter of law, that he was guilty of contributory negligence. He was engaged in the performance of his duty in the manner in which he had been performing it with the apparent approval of the defendant, and he was hit and injured by reason of the negligent manner in which the work was performed.
Fifth. The presiding justice at the trial submitted to the jury in a very general way the question whether the defendant should have promulgated rules to govern the employees in this work. This submission may well be held to have related to the instructions or warning which the jury may have found should have been given to the .plaintiff and his coemployees. The exception to this part of the charge was not specific and did not call the attention of the court to the proposition that it was susceptible to the interpretation by the jury of an inde
The judgment should be affirmed.
All concurred, except McLennan, P. J., who dissented in an opinion, and Williams, J., who dissented upon the ground of excessive verdict.
Dissenting Opinion
(dissenting):
The accident which is the subject of this action occurred on the 31st day of July, 1909, at about ten o’clock a.,m. At the time and for a considerable period prior thereto, the plaintiff was employed by the defendant as a common laborer arid it was engaged in constructing a large reinforced concrete building in the city of Rochester, N. T. In the erection of such building the defendant employed several hundred men, riiany of them being skilled and expert mechanics and being specially trained to carry on by the most approved method the different parts of the work. There was also employed a number of common laborers, so called, who did not possess any expert knowledge and who were only required to perform certain manual labor not involving any expert skill or knowledge.
At the time of the accident the basement or first story of the building had been practically completed, except that the floor had not been laid and certain planks and timbers, which had been used in making the forms or false work for the construction of the ceiling, had not been removed.
The evidence tends to show and it is practically conceded that in the construction of such ceiling, in making and putting up such forms and false work, it was necessary to employ expert and skilled labor and so, too, in removing the same, if such forms were to be removed without taking them apart. Therefore, a wrecking gang was employed to remove such forms and false work who had special knowledge as to the reasonably safe method of removing the same. A day or two prior to the accident such wrecking gang had removed from the ceiling of the basement all the forms or false work except certain planks which had formed the bottom of the forms, in
Such being the situation of the basement and its ceiling, the plaintiff with two coemployees, all healthy, strong men, were directed by the defendant’s boss or superintendent to remove such planks from beneath such girders or beams and to place them on the ground below, a distance of from fourteen to sixteen feet, without breaking them.. Plaintiff and his two coemployees entered upon such work upon the morning of the day in question. They had removed four planks, eighteen and a half feet long, eight inches wide and two inches thick and which weighed between seventy-five and one hundred and twenty pounds without accident, and such removal was made as follows: One of plaintiff’s associates got a ladder
which enabled him to reach one end of the plank in question, and the other, by means of another ladder, reached the other end. When both had reached such position, one of them directed the plaintiff to knock out the prop from under the plank, which he did, and both men on the ladders commenced to pry the plank loose with pinch bars, intending, when it became disengaged from the girder, that with one holding' onto each end they-would carry it down the ladders and place it upon the ground. But when the plank had become fully detached from the girder and the' man on one of the ladders attempted to hold one end of it, because of the insecure, placing of the foot or feet of the ladder upon which he was standing he lost his balance and to save himself let the plank fall to the ground. The plaintiff, at the time apparently giving no attention to what was being done with the plank above, had stooped to pick up and carry away the timber or support which he had knocked from under the plank, and the plank fell, striking him upon-the head and causing the very serious injuries for which he seeks to recover in this action.
The action was tried and submitted to the jury as a common-law action. The evidence is practically undisputed and it is
As before said/the material facts in this case are not in dispute and, as it seems to me, present one of the simplest and most ordinary situations. The defendant was desirous of having removed from the ceiling of the basement of the building it was erecting a plank eighteen feet and six inches long, eight inches wide and two inches thick, which weighed from seventy-five to one hundred and twenty pounds. The defendant sent three of its employees to make such removal and to lower the plank from such ceiling to the ground. It appears without contradiction that they had successfully and without accident removed four other planks during the same morning situated precisely as the one in question. There is no suggestion in the evidence that the whole situation was not perfectly obvious to the plaintiff and to his associates. His two associates were to loosen the plank above and bring it to the ground. Of course, he knew that if they let the plank drop and he was under it, injury would probably result to him. The plank did not fall immediately when the plaintiff knocked out the prop from under it, but it remained in place until his two coemployees had loosened it, and when the weight of the plank came upon them, by reason of the insecure footing of the ladder which they had placed upon the uneven ground, one of plaintiff’s coemployees let go of the plank and'plaintiff’s injuries resulted.
A large portion of the brief of respondent’s counsel is devoted to the proposition that the erection of a reinforced concrete building involves expert and technical knowledge on the part of the employees and involves such work as cannot be safely performed by ordinary common laborers. But it seems to me that the intricacies or complications' of the construction of a reinforced concrete building have nothing to do with the facts in this case. As we have pointed out, the only thing that the plaintiff and his two associates, both healthy and strong men, were directed to do by the defendant was to lower a plank, weighing from seventy-five to one hundred and twenty pounds, from the ceiling to the ground, a distance of from fourteen to sixteen feet. Under such circumstances, what rule was the defendant required to promulgate in order to protect such
The "case was submitted to the jury principally upon the theory that the plaintiff and his two associates were furnished with an unsafe place in which to work. The place- was absolutely safe. It was light. There was plenty of room in which to perform the task assigned to them; plenty of room in which to knock out the prop under the plank, which the plaintiff did, and his associates were strong enough and entirely competent to hold the plank from falling in case one of them had placed his. ladder securely and thus prevented the losing of his balance and the consequent falling of the plank.
I think there is no basis in the evidence for the suggestion that the method which was employed to lower the plank in
I conclude upon all the evidence in this case that the plaintiff failed to establish actionable negligence against the defendant and that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment and order affirmed, with costs.